SUIT ENDED ON PICTURE OF WASHINGTON

Matt O'Connor, Tribune Staff WriterCHICAGO TRIBUNE

Word spread quickly that day in May 1988 when an unflattering painting of Mayor Harold Washington was hung in a hallway of the School of the Art Institute, just months after the sudden death of the city's first black chief executive.

Three Chicago aldermen, incensed over Washington's depiction in the painting in women's frilly white lingerie, stormed the building, removed the artwork from the wall and held it hostage for several hours.

Then-Police Supt. LeRoy Martin ordered officers to take the painting into custody overnight, prompting angry art students to shout "Fascists!" and "Racists!" as it was carried to a squad car.

On Tuesday, six years after that wild dash, a federal judge approved a settlement of a civil rights lawsuit filed by the work's student painter in which the City of Chicago agreed to pay $95,000 to end the litigation.

The money will go to pay a portion of the attorney fees racked up by the American Civil Liberties Union, which has represented the former student, David K. Nelson Jr., since 1988.

The city made it clear that Nelson won't receive a dime of the settlement.

In an attempt to avoid a similar confrontation, the city agreed to issue a detailed set of procedures to Chicago police defining the limited circumstances in which materials protected by the 1st Amendment may be seized.

In addition, the three aldermen-Dorothy Tillman (3rd), Allan Streeter (17th) and Bobby Rush, now a Democratic member of the U.S. House-agreed not to appeal a 1992 federal court ruling that they had violated Nelson's constitutional rights.

"After six years of litigation, this settlement is a clear victory for the right of free expression," said Harvey Grossman, legal director for the ACLU of Illinois and counsel in the case. "The damages from the city show the cost of censorship, and the police guidelines hopefully will prevent the arrest of controversial art in the future."

Nelson couldn't be reached for comment, but his lawyers said he remains in Chicago, drawing advertising for an undisclosed firm and painting in his free time.

Standish Willis, Tillman's attorney, said that Nelson told lawyers in a deposition that his painting, entitled "Mirth and Girth," was intended to demystify a mayor whom he felt had been treated as a saint by blacks.

In recent weeks, the settlement of Nelson's lawsuit had been hung up as lawyers for the aldermen pressed the city to pay their attorney fees in the case, estimated to be several hundred thousand dollars.

But the city refused, though it left the door open for U.S. District Judge George Lindberg, who approved the settlement Tuesday, to decide the dispute over the aldermen's legal fees.

Otherwise, the aldermen can ask the City Council Finance Committee a third time to pay for the fees. Twice before, the committee refused, saying the aldermen had acted as private citizens, not in their official capacity, in removing the painting.

At a press conference, Tillman said her legal fees alone top $200,000 from the lawsuit and indicated she will continue to fight until the city pays.

"This is a victory," she said of the settlement. "This is a victory not just for me, but all the citizens of Chicago and African-Americans all over the country."

"I support the arts. Everyone who knows me knows that," Tillman added. "But this is not art. This is beyond expression. To take a community and a man they loved so much and disrespect him is wrong. Our community was in mourning. That boy was playing with fire."

In the settlement, the city, the aldermen and Martin denied any liability or wrongdoing on their part and denied Nelson suffered any damages.

A city lawyer described the $95,000 settlement as a pragmatic decision to avoid the further cost of a trial and the possibility, if the defendants had lost, of incurring damages and the full brunt of the ACLU's attorney fees.

The $95,000 settlement will come from the city's tort judgment fund.

"The city is very aware it is spending taxpayer money, but the potential exposure was much greater, although we thought we could win at trial," said Diane Pezanoski, assistant corporation counsel.

The ACLU's fees could have exceeded $300,000 if the case had gone to trial, Pezanoski said.

Lawyers for the aldermen were prepared to argue that Nelson, rather than being damaged by the furor, had accomplished his goal to gain name recognition and further his career.

In a pretrial decision two years ago, Lindberg ruled the three aldermen violated Nelson's rights and ordered Martin to go to trial for ordering that the painting be taken into custody.

The aldermen argued that they had acted to prevent a riot from occurring, while Martin insisted his actions were intended to protect, not censor, the painting.

Earlier this year, a federal Appeals Court panel in Chicago rejected the aldermen's claim they had acted to avoid a riot.

"Burn down Chicago over a painting?" the judges said in the ruling. "Paris maybe, but Americans have never taken culture that seriously."

An unusual aspect of the settlement requires the city to distribute to all current Chicago police officers as well as future probationary officers a two-page notice concerning 1st Amendment rights.

In a copy marked "draft" and attached to the settlement, Police Supt. Matt Rodriguez said that in addition to maintaining public order, officers "have an equally important duty . . . to protect lawful expression from a hostile audience."

Grossman said the notice is designed to let officers know they "must protect unpopular speech with all available resources."